Introduction

The Equality Act (the “Act”) received Royal Assent in early April 2010 and a number of its provisions come into force on 1 October 2010.

The Act harmonises, simplifies and reforms the UK’s discrimination regime. This update therefore explains the changes which are due to come into force on 1 October 2010 and provides guidance on the steps employers can and should take to ensure compliance with the Act.

Prior to the Act coming into force, the legislation governing unlawful discrimination was contained in numerous acts and regulations, namely the Equal Pay Act 1970, Sex Discrimination Act 1975, Race Relations Act 1976, Disability Discrimination Act 1995, Equality Act 2006, Employment Equality (Religion or Belief) Regulations 2003, Employment Equality (Sexual Orientation) Regulations 2003, Employment Equality (Age) Regulations 2006 and Equality Act (Sexual Orientation) Regulations 2007).

Protected Characteristics

The characteristics protected by the UK’s discrimination legislation prior to the Act and which may give an individual the right to bring a discrimination claim remain in place. Accordingly, employees are still protected from unlawful discrimination on the basis of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. The Act describes these as “protected characteristics”.

Important changes made by the Act to the application and definition of these protected characteristics are as follows:  

  • the concepts of “discrimination by perception” and “discrimination by association” (which had been developing in the prior case law) are now specifically covered by the legislation;  
  • the definition of “gender reassignment” has changed. There is now no requirement for the individual to be under medical supervision in order to be protected from unlawful discrimination—what is required is a decision to live permanently in a re-assigned sex; and  
  • the definition of disability has been altered. An individual is still deemed disabled if he or she has a physical or mental impairment and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. However, the tribunal no longer needs to consider the prescribed list of capacities which was set out in the Disability Discrimination Act 1995 (such as mobility and manual dexterity) in determining whether a person suffers a long-term adverse effect on day-to-day activities.

Forms of Discrimination

The Act restates, and makes consistent across the various strands of discrimination protection, the forms of discrimination which the Act deems unlawful.

Direct Discrimination

Direct discrimination arises when someone is treated less favourably than another person:  

  • “because” of a protected characteristic;  
  • because he or she is thought to have a protected characteristic; or  
  • because he or she associates with someone who has a protected characteristic.  

As a result, perceived and associative discrimination are concepts now covered by the Act. However, the legislation does not provide protection in respect of discrimination by perception or association if the protected characteristic in question is marriage or civil partnership. In other words, the victim of unlawful direct discrimination on the basis of marriage or civil partnership must, in fact, be married or in a civil partnership as the case may be.  

Perceived discrimination would occur, for example, if an employee were subjected to unlawful discrimination on the ground that he is believed to be homosexual but is, in fact, heterosexual (or unwilling to confirm his orientation either way).  

Associative discrimination would occur if, for example, an employee is subjected to unlawful discrimination on the ground that his/her friend or family member is disabled. Those with caring responsibilities may argue, depending on their circumstances, that they are protected by this concept of associative discrimination.  

Employers should note that:  

  • it is still possible to justify direct age discrimination if it is a proportionate means of achieving a legitimate aim; and  
  • in any proceedings where a person alleges discrimination, harassment or victimisation under the Act, the burden of proving the claim starts with the claimant. Once the claimant has established sufficient facts which in the absence of any other explanation point to discrimination potentially having occurred, the burden shifts to the respondent to show that it did not breach the provisions of the Act. The reversal of the burden of proof remains unchanged by the Act and is of crucial importance to employers, as a practical and evidential matter, when defending discrimination claims.  

Indirect Discrimination

Indirect discrimination arises when a policy or practice which applies to everyone particularly disadvantages people who have a protected characteristic.

Unlike direct discrimination (save in the case of age), indirect discrimination can be justified if the employer can show that the policy or practice is a “proportionate means of achieving a legitimate aim”, a test which is necessarily fact-sensitive in each particular case.

Indirect discrimination already applies to age, race, religion/belief, sex, sexual orientation and marriage/civil partnership. The Act extends its coverage to the protected characteristics of disability and gender reassignment. Indirect discrimination claims cannot be made in relation to pregnancy or maternity.

Harassment

Harassment is defined by the Act as unwanted conduct “related to” a relevant protected characteristic which has the purpose or effect or violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual. Whilst the definition of harassment largely reflects the formulation adopted in the previous legislation, employers should note that:  

  • the updated concept of harassment enshrined in the Act is wide enough to protect individuals who are perceived to have, or associate with someone who has, a relevant protected characteristic;  
  • harassment applies to all protected characteristics, except pregnancy/maternity and marriage/civil partnership;  
  • the Act establishes two additional specific forms of harassment—unwanted conduct of a sexual nature and less favourable treatment because an individual submits to or rejects sexual harassment related to sex or gender reassignment; and  
  • employers can be liable for harassment of their employees by third parties if the employer has not taken reasonable steps to prevent such treatment and the employer knows that the employee has been harassed on at least two previous occasions (although the perpetrators of such harassment can be different). Before the Act came into force, only third-party harassment on the basis of sex was protected in this way.  

Victimisation  

Victimisation occurs when an employer subjects a person to a detriment because they have (or the employer believes the individual has or may have) carried out a “protected act”. The individual subjected to victimisation does not need to possess a characteristic protected by the Act in order to be able to make a claim of victimisation.

Any of the following constitute a “protected act”:  

  • bringing proceedings under the Act;  
  • giving evidence or information in proceedings brought under the Act;  
  • doing anything which is related to the provisions of the Act; or  
  • making an allegation that another person has done something in breach of the Act.  

The concept of detriment (i.e. treatment which gives rise to a victimisation claim) is not defined in the Act – nor was it in the earlier legislation – but is likely to include making an individual’s position worse and/or putting the individual at a disadvantage (for example, disproportionate performance requirements, demotion). The important change which the Act makes in relation to victimisation is that a “comparator” is no longer required. The complainant simply has to show they have been subjected to a detriment by reference to a protected act, not that he or she has been treated less favourably than someone who had not committed a protected act. This should make victimisation claims simpler and easier to run.  

Discrimination Arising from Disability

The Act establishes a specific new form of disability discrimination – discrimination “arising from” disability. This new concept has been introduced to overcome the limitations of disability related discrimination (under the Disability Discrimination Act 1995) following the case of London Borough of Lewisham v Malcolm.

The Malcolm case made the concept of disability related discrimination under the 1995 Act virtually meaningless. Mr Malcolm was schizophrenic and illegally sublet his council flat. The House of Lords held that, to determine whether he had suffered disability-related discrimination, Mr Malcolm should be compared with a non-disabled person who had also sublet his/her flat. On that basis, there was no unlawful disability discrimination because the council would have treated both the disabled and non-disabled persons in the same way.

The new concept of “discrimination arising from disability” does not require a comparator and therefore will make claims easier to bring. An employer will discriminate against a disabled person if that person is treated less favourably because of something arising in consequence of his or her disability.

Whilst this change expands the ability of those who can demonstrate that they are disabled for the purposes of the legislation to bring claims, employers can still defend their position either:

  • on the basis of justification for its action, i.e. that its treatment of the complainant was a proportionate means of achieving a legitimate aim; and  
  • on the basis that it did not know and could not reasonably be expected to know that the complainant had the disability in question.  

Disability Discrimination – Duty to Make Reasonable Adjustments

The duty to make reasonable adjustments established by the 1995 Act remains in place. In summary, where a provision, criterion or practice or a physical feature puts a disabled person at a substantial disadvantage (in relation to a relevant matter in comparison with a non-disabled person) the employer must take such steps as it is reasonable to avoid the disadvantage. The Act now makes clear that where a disabled person would, but for the provision of an auxiliary aid, be at a substantial disadvantage in comparison with non-disabled persons, the employer must take such steps as is reasonable to have to take to provide the auxiliary aid.  

Pre-Employment Health Questionnaires

As a result of the Act, employers will be restricted from asking job applicants about their health and any disability before making any (conditional or unconditional) offer of work, except in certain specified circumstances. These provisions relate to offers of work and therefore apply equally to applications for employment, engagement as a worker or partnership.

An employer is only explicitly permitted by the Act to ask questions of job applicants which are necessary for the purposes of, amongst other things, determining whether any adjustments need to be made to enable the applicant to participate in a recruitment exercise, establishing whether the applicant will be able to carry out a function that is intrinsic to the job (once reasonable adjustments have been made) and enabling the employer to identify suitable candidates for a job where there is an occupational requirement for the applicant to be disabled.

An employer will not commit an act of disability discrimination by simply asking a job applicant about his or her health before making an offer of employment. However, if an employer does make pre-employment health enquiries for a reason which is not permitted and the applicant subsequently brings a claim for direct disability discrimination, the employer’s conduct in relying on the information given by the applicant may lead an Employment Tribunal to conclude that the employer committed a discriminatory act. Effectively, the burden of proof shifts to the employer to demonstrate that it did not act in a discriminatory manner.

These provisions do not prevent employers from requiring applicants to complete medical questionnaires or undergo medicals once they have been offered a position, even where such a requirement is a condition of the relevant offer. If an offer is withdrawn as a result of a health questionnaire or medical, the employer could nonetheless be faced with a claim under the Act of direct discrimination, discrimination arising from a disability or a breach of the duty to make reasonable adjustments.

Employment Tribunal Recommendations

The Act gives the employment tribunal the power, where a claim is successful, to recommend the steps that a business should take to eliminate or reduce the adverse effect of discrimination in the workplace (for example, by introducing an equal opportunities policy). Such a recommendation will not be legally binding. That said, failure to comply with a recommendation could be used as evidence to support future discrimination claims.

Transition from Existing Legislation

The Act will not apply to acts of discrimination which occur wholly before 1 October (to which the old legislation will apply). It will, however, apply to acts of discrimination which started before 1 October and continue after 1 October provided such discrimination is unlawful under both the Act and the previous legislation. Any unlawful discrimination which takes place wholly after 1 October will be covered by the Act.  

Pay Secrecy

Under the Act, any provision which seeks to prevent employees from disclosing pay data is unenforceable when the individual is seeking to make a “relevant pay disclosure”. A “relevant pay disclosure” is one that is made “for the purpose of finding out whether or to what extent there is a nexus between pay and a particular protected characteristic”.

Future Changes

A number of sections of the Act are not scheduled to come into force in October 2010. These include, arguably, some of the most controversial provisions of the Act. Those which are relevant to employers are:  

  • the introduction of the ability to bring a claim of combined discrimination, whereby employees will be able to bring discrimination claims based on a combination of two protected characteristics;  
  • phased removal of the default retirement age (currently 65);  
  • gender pay gap information, requiring employers with 250 or more employees to report on the disparity between what male and female employees are paid; and  
  • positive action in recruitment and promotion, permitting employers to select candidates for recruitment or promotion on the basis of a protected characteristic.

The Government has simply stated that “Ministers are considering how to implement these remaining provisions in the best way for business and for others with rights and responsibilities under the Act. Their decisions will be announced in due course.”

EHRC Guidance and Codes of Practice

The Equality and Human Rights Commission (EHRC) has produced guidance to help employers to understand and use the Act. The guidance documents provide an overview of the Act and are available on the EHRC website. The EHRC is also in the process of producing three Codes of Practice on employment; services, public functions and associations; and equal pay which employers should look out for. The purpose of these Codes of Practice is to explain in more detail the new statutory provisions of the Act. The EHRC hopes to finalise the Codes of Practice by the end of October 2010. The Codes of Practice will have to be approved by Parliament before coming into force. For the avoidance of doubt, a failure by a person or organisation to comply with a provision of a Code of Practice will not of itself be a cause of action. However, such a breach will be admissible as evidence and may be taken into account by a court or tribunal in assessing whether a breach of the Act has occurred.

Dealing with the Act

To ensure compliance with the Act, employers should:  

  • review their policies and procedures to ensure those documents remain appropriate. Where an employer already has a broad equal opportunities policy, it is unlikely that this will need a complete overhaul. Nonetheless, it is helpful (not least in defending any potential tribunal claim) to demonstrate that the employer has made the effort to review its policies and procedures in the light of the Act. In particular, it may be helpful for employers to ensure that their policies include a complete list of protected characteristics, provide examples of what would amount to perceptive and associative discrimination and encourage employees to report any act of harassment from any source;  
  • review current recruitment practices and ensure that all individuals involved in recruitment are aware of the new restriction on pre-employment health checks. Any health check that is potentially required should be carefully vetted. The basis for undertaking such a health check in respect of any role should be contemporaneously noted and kept on file;  
  • review template compromise agreements to ensure the waiver of claims is effective; and  
  • consider the EHRC’s guidance.  

Diversity and Training  

The introduction of the Act also offers a good opportunity for employers to ensure that employees are aware of their obligations in relation to diversity and discrimination issues by conducting diversity training (particularly at manager level and above). Diversity training can raise awareness of diversity and discrimination issues in the workplace and can be valuable in reducing the risk of and assisting in the defence of employment tribunal claims, especially where introduced in conjunction with new or updated equal opportunities, harassment and disciplinary and grievance procedures.